In this case the law lords followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife.
1) Privy Council decisions.
2) Obiter Dicta statements. This is particularly true of Obiter in the House of Lords e.g.
R v Howe (1987) the Lords ruled that duress could not be a defence for a charge of murder. So the Lords also followed Obiter that duress would not be available as an offence for someone charged with attempted murder.
But in 1992 R v Gotts , the Court of Appeal used this Obiter statement as a persuasive precedent to rule out a defence of duress in a charge of attempted murder.
A dissenting judgement is a judgement that disagreed with a majority view may be used to over rule the decision of the majority.
Decisions of court in other countries …especially where the same idea of common law are used, commonwealth countries e.g. Australia McLoughin v O’Brian (1983)
The extract from Peake J in Mirehouse v Kennel 1883 means that our Common Law systems function is applying new precedents and laws for new circumstances but the precedents are based on legal principles and judicial precedents. It says that we are not at liberty of reject them, and to abandon all analogy to them. This means that we don't have the right to ignore the laws and precedents or any analogy on them.
The doctrine of precedent states that every court is bound to follow any decision made by a court above it in the hierarchy, and appellare courts are bound by their own past decisions. This means that in Civil Cases the Courts are bound by those above them e.g. The Magistrates Court is bound by precedent to the County Court, Divisional Courts, Court Of Appeal, House of Lords or the Supreme Court and The European Court of Justice which uses Persuasive Precedent. The Courts in the hierarchy follow the same pattern they are bound by those above it. You can also overrule the courts below you. In the Criminal Cases they follow the same pattern; the courts are bound to make any decision made by a court above it in the hierarchy. For example the Magistrates Court are bound by or have binding precedent from the Crown Court because it is higher up in the hierarchy. There is one difference to the precedent in the Criminal Cases, because they are more serious incidences in the Queens Bench Divisional, when a person’s liberty is at stake and they don't deserve it the case can change the precedent without appealing to the court above. The court of appeal civil division is bound to follow it's past decisions in the civil divisions unless a limited exception listed in Young v Bristol Aeroplanes applies. A criticism of precedent is that it doesn't allow judges to update the law in response to changes in society. Criticism exists within judicial precedent because it could cause confusion and bias within the law. Also past cases may want to be re-judged if they could get a better outcome. When judges "are not at liberty to reject them" this means that the judges don’t have the right to dismiss the precedent regardless of their place in the hierarchy.
There are quite a few advantages and disadvantages of the precedent procedure. Starting with advantages which Provides certainty in law, that Judges have clear cases to follow, and how Lower courts follow higher courts. It also leads to an orderly development of the law. Only the Lords can overrule it’s previous decisions and the hierarchy of the courts ensures that lower courts follow higher courts. Case law of real situations – viable statute law and therefore rule and principles are derived from everyday life. This means that it should work effectively and be intelligible. Where unwelcome developments take place. The law can develop. There is flexibility especially since 1966. Look at the law on intention has changed since 1970, but also when Lords feel that change is leading to uncertainty again and to save time – avoids unnecessary litigation.
But from all this precedent also has its downfalls/disadvantages. There are so many cases that it is hard for judges to find relevant cases and the reasoning may not be clear. Case law can only change if a real case is brought. This requires someone to have the money to bring such a case. To take a case to the Lords is highly expensive.
Bad decisions are perpetuated since lower courts must follow higher courts (e.g. Anns)
Very few cases get to the Lords which is the only court which can overrule one of it’s own previous decisions. Not until 1991 (n R v R) was rape in marriage accepted as a crime.
Restricts the development of the law. It leads to distinguishing and hair splitting decisions which rules the law unnecessarily complex e.g. the law on automatism and voluntary intoxication which has led to some diabetics having to use the defence of insanity to escape a conviction if their trance like state was caused by lack of insulin, whilst if their state was caused by failure to eat after taking insulin they can use the defence of automatism. The law on insanity is still based on the McLoughlin rules 1843.
It is difficult to distinguish between ratio and obiter e.g. Donoghue v Stephenson and Too much distinguishing or use of Practice Statement damages certainty.
(b) The House of Lords created the precedent; it is a past precedent as the case on the Cape of Good Hope was in 1844. The case of the twins in 2007 is the current case. The ratio in the case on the Cape of Good Hope is that it was seen as acceptable for the crew aboard the vessel to kill the cabin boy and feed on his body because they would have not survived without doing this. For this case there is a ratio decidendi stating that there is "No defence of killing by necessity". The case is being heard by the criminal court because it is a case involving death. The current case of the twins in 2007 involves the hospital stating that it was impossible to separate the twins of which were joined at the head, without one of the twins dying. Although there is a ratio decidendi stating "No defence of killing by necessity", the children would have both had a worse quality of life if not seperated. The House of Lords could choose to follow. If I chose to follow the precedent this would involve a past precedent being used which is similar, therefore the same decision will be made as a similar case. The problem with this is that it does not allow the judges any creativity as you have to abide to previous precedents. The judge would not be changing the law. If the House of Lords dealt with both cases with following then the old law wouldn't be changed, the Precedent would in turn find the case on the Cape of Good Hope guilty for killing and the hospital would be found guilty in the case of the twins 2007. The House of Lords could choose to distinguish. Distinguishing allows you to make a new law if you can find enough differences between cases. You would be able to have a new law for the new facts. An example of distinguishing is the case of Balfour v Balfour and Merritt v Merrit. The Differences between the House of Lords past case and The House of Lords current case are that in the past case to kill is against the law and against the ratio decidendi. In this case the cabin boys liberty was at stake for selfishness. They should have all died together, not committed in murder; this was against the cabin boys human rights. The cabin boy was healthy and there was no reason for him to die. The cabin boys health wasn't at a disadvantage, whereas in the current case of the twins if they would have both been left un-operated on then they would have had a worse quality of life and they had health risks already due to being attached by the head.
The House of Lords couldn't overrule because with overruling they are opening the door for everyone to kill if necessary. This is against the ratio decidendi.
The House of Lords overruling the House of Lords would mean they would have to use the practise statement. Cases such as London Street Tramways 1898 v London County Council 1898 meant that the House of Lords could change Precedents but not their own. This means that the development of the law is stagnated. Therefore the practise statement was a new guideline for judges as they could use the term "when right to do so". Also the cases such as Herrington, Miliangos v George Frank (Textiles) Ltd 1976. This showed there was more willingness to use the power, even in the criminal cases, compensation normally was awarded in sterling but could now be awarded in other currencies. The case of Pepper v Hart 1993 allowed the use of Hansard in interpreting statutes. Although with the practise statement it could allow judges to change the law, they thought it may cause the law to be biased and it would also be confusing as there would be alot of new laws. Whereas they believed it was good because in cases there may be a very good reason to change the law.
My final decision would be to distinguish the case. As the “cape of good hope” case has a variation of facts from the twins case. The ratio is that they wouldn’t survive without doing so by eating the cabin boy. This is much different from the twins case as the hospital was doing what was right but for the greater good, they didn’t want one of the twins to die, they thought doing so would prevent the other twin from having a difficult childhood this how is showing a more humane way of coming to the decision of taking a life compared to how the cabin boy was alone and was obviously killed and eaten by the others just because they were hungry. The cabin boy had rights to die civilly and the people who killed him, if death was upon them should’ve died willingly and honourably with him. As the facts are similar in taking lives but are different overall as the judge I can choose to follow it or not, but as the judge personally, I would create a new precedent for future cases to follow, making sure this would not be misconstrued in future cases with reference to this previous case.
